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                            LexisNexisª Academic

                Copyright 2001 American Lawyer Media, L.P.
                         Fulton County Daily Report

                           June 21, 2001 Thursday

LENGTH: 1762 words

HEADLINE: The government should require a DNA sample, but keep it private

BYLINE: Akhil Reed Amar

BODY:
As scientists unlock the intricacies of the genetic code, lawyers must
revise the intricacies of the legal code. DNA technology can work
miracles-exonerating the innocent, identifying the guilty, reassuring the
public, and vindicating the victim.

The technology also can imperil legitimate privacy interests by exposing
intimate details of a person's existence to Big Brother and Big Business.

Current law was not crafted with this technology in mind. Optimal revisions
will require lawyers of all sorts to step back from their narrow job
descriptions and see the broader social interest. A recent ruling from
Virginia provides a convenient starting point for analysis. In 1990 the
state convicted James Harvey of rape and sentenced him to 25 years. Aided by
the New York-based Innocence Project, Harvey now seeks access to the rape
kit-containing biological evidence from the victim and the crime scene-in
order to test whatever semen DNA may be found.

The state prosecutor has resisted, but in mid-April a federal district judge
ruled in Harvey's favor, reasoning that withholding the kit and its
potentially exculpatory evidence violates Harvey's due process rights.

Judges elsewhere have declined to order post-conviction testing on similar
facts, and the issue is likely to come before the U.S. Supreme Court.

But why are so many of these cases in court at all? Why aren't more
prosecutors voluntarily allowing convicts access? The state can't complain
about the cost of a test if the defense team is willing to shoulder it. And
arguing for repose and finality ignores the compelling counter-interest in
substantive justice.

If the DNA casts strong doubt on-or indeed conclusively disproves-the
convict's guilt, the state's true interests are ill served by suppressing
this information. A just state, after all, cares not about upholding
convictions, per se, but about finding the bad guys.

If the wrong man is in prison, perhaps the true culprit is on the loose.
Sometimes the interest in finality is linked to "closure" for the victim's
family and friends. But surely this interest would not allow the state to
ban post-verdict private detectives, censor skeptical journalists, or muzzle
new eyewitnesses; nor should it allow the state to suppress the DNA
evidence.

A government with confidence in the general fairness of its criminal justice
system should welcome the double-check of independent DNA tests, which can
lay to rest all lingering doubts.

Indeed, refusal to allow new testing can undermine the confidence of the
public and the victim: What is the state trying to hide? And in those cases
where the DNA disproves the trial verdict, these tests serve an invaluable
auditing function, helping the state determine if there is any systematic
pattern to its past mistakes. For example, new DNA tests in Oklahoma
recently have led investigators to confront the possibility of serious
malfeasance in one particular police lab.

A cynic might say that prosecutors simply are fighting to maintain their
winning percentage, resisting anything that might prove their office
fallible (or worse). Res judicata means never having to say you're sorry.

Two Prosecutorial Concerns

But there are two legitimate prosecutorial concerns that are indeed weighty.
First, if the government must hand over whatever biological evidence it
retains, courts may eventually require the police to retain the evidence
indefinitely at state expense. Second, in many cases the DNA may not be
enough to conclusively clear the defendant.

For example, in a rape case such as Harvey's, even if testers discover semen
that fails to match his, Harvey still could have been involved, since the
crime involved two rapists, and the semen could have come from the
accomplice. (The victim was unable to provide a conclusive identification
and expressed some doubt about whether both rapists ejaculated.)

In a case of this sort, the defendant will seek a new trial, arguing that a
new jury should hear the new (doubt-raising, though inconclusive) evidence.
The prosecutor often will counter, with some justness, that Humpty Dumpty
cannot be reassembled. Years might have elapsed since the first trial,
perhaps much of the original evidence has faded away and the witnesses now
may be dead or unavailable. A trial truly fair to the state as well as the
defendant no longer may be possible.

This is a genuine concern when a defendant seeks the extraordinary remedy of
a new trial. But it is hardly an argument for rejecting a new DNA test. So
long as it is reasonably possible that the test might completely clear the
convict, the test should be done.

In Harvey's case, for example, the DNA test not only might fail to match
Harvey but also might match other culprits directly in ways that would
completely clear the convict. To insist that a convict must prove that the
test will conclusively prove his innocence before he can do the test is to
make Catch-22 a rule of law.

What's more, even an inconclusive DNA test can be a valuable aid to a
governor or pardon board, who can review old trial transcripts and police
files in light of the new evidence in ways that a second trial jury cannot.

When Test Is Inconclusive

But the fundamental problem remains: Often the DNA test will be
inconclusive, failing to match the convict while also failing to rule out
the possibility that the DNA came from the convict's unknown accomplice.

Thus, a purely negative DNA match is often not good enough. We need a
positive DNA match as well, telling us not just that the DNA did not come
from James Harvey, but also that it did in fact come from John Doe. Once we
make the positive match, we can usually decide whether the prosecution's
accomplice theory holds up.

Is there any evidence linking Harvey to Doe? Does Doe have a record of
committing similar crimes on his own or with some other accomplice? With a
positive and a negative match, innocent defendants can be freed, past
victims vindicated, and future victims protected. Indeed, if we could make a
positive match regularly, most stranger rapes could be solved and thus, one
hopes, many rapists deterred-a truly amazing prospect.

Regularly making positive matches would require creating a far more
comprehensive DNA database than exists. New technology makes this possible.
Every child at birth now has a blood test for medical purposes. A few drops
could be diverted to generate a DNA fingerprint. (These DNA fingerprints
also could help prevent a now-prevalent form of identity fraud whereby a
criminal uses another person's birth certificate, which lacks unique
identification markers such as fingerprints or footprints.)

In addition, all adults could be required to submit to a quick cheek swab,
perhaps when they get their driver's licenses. This swab is all that would
be needed to generate the genetic fingerprint.

Such a database would be in the interest of innocent criminal defendants;
yet almost no criminal defense attorney has called for its creation.
Instinctively, the defense bar recoils from broad searches and seizures, and
is more comfortable fighting blood tests than demanding them.

A defense attorney's job is simply to get his client off the proverbial
hook-reasonable doubt at a reasonable price. Actually finding the real
culprit is not in the defense attorney's standard job description. But this
view is just as misguided as that of the prosecutor who cares only about
maintaining conviction rates. Without a comprehensive database, many
innocent defendants never will be able to prove their innocence decisively;
with such a database in place, prosecutors will be far less hostile to new
testing. (Many of the convictions a prosecutor's office might lose would be
offset by new convictions enabled by positive matches.)

A Real Danger

Of course there is real danger in allowing the government unlimited access
to each person's entire DNA code, which contains oodles of private bits of
information that could be used in sinister ways. For example, the complete
code may reveal a person's genetic predispositions to various
diseases-information that could compromise employability and insurability,
and that the person himself might prefer not to know.

But there is a clean way of protecting private information of this sort, by
using only part of the DNA code (so-called junk DNA) that identifies a
person but tells us nothing truly private-the DNA equivalent of a
fingerprint. The same comprehensive DNA statute that required mandatory
blood tests and cheek swabs also could provide that only the DNA fingerprint
be done, with the rest of the biological sample destroyed.

The law further could provide for elaborate safeguards against the misuse of
samples, including an explicit statutory requirement or implicit
understanding that the whole program be headed by a distinguished civil
libertarian.

If analyzed by the global test of Fourth Amendment reasonableness, this
hardly seems an "unreasonable" search and seizure regime. The hypothetical
scheme is nondiscriminatory, relatively nonintrusive, well-justified,
sensitive to legitimate privacy interests, and no broader than necessary.

But it is not entirely clear that current Supreme Court doctrine would allow
such a comprehensive DNA statute, because it contemplates intrusions for
criminal law enforcement purposes in the absence of probable cause, and,
indeed, in the absence of individualized suspicion.

This is a category of search that the current Supreme Court generally
disfavors. And so the new technology may require the justices, too, to
rethink some of their dicta and dogma. Even if law enforcement purposes
alone might not justify a comprehensive database, isn't the case more
compelling if such databases also can ride to the rescue of the erroneously
accused and the wrongly convicted?

Whether comprehensive DNA databases are put in place, the law needs to
provide more protection for the biological samples already held by the
government.

Current doctrine, for example, does not limit the government to
fingerprinting the "junk" DNA and has failed to make clear what rules govern
the testing of previously acquired biological samples.

More protection against government abuse and more security from private
thuggery; more innocent prisoners freed and more violent criminals caught;
more reliable evidence at our disposal and more safeguards for our medical
privacy. This is the world the scientists have made possible. But will the
lawyers make it happen?

LOAD-DATE: June 26, 2001